Watson v State of NSW - [2021] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation: Watson v State of NSW [2021] NSWSC 765
Hearing dates: 25 June 2021
Date of orders: 25 June 2021
Decision date: 25 June 2021
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
For the reasons given I thus order that the extension of time which Mr Watson seeks for the commencement of the proceedings be granted and accordingly, that he be given leave to commence the proceedings and to file his statement of claim.

Catchwords:
CIVIL PROCEDURE – Time – Extension of time – Where extension of time to bring action is sought – leave granted
LIMITATION OF ACTIONS – Personal injury – Where delay in onset of symptoms leads to delay in bringing action
NEGLIGENCE – Psychiatric injury
STATUTORY INTERPRETATION – whether limitation provisions of Motor Accidents Compensation Act1999 or Limitation Act 1969 apply to application– Definition of ‘motor vehicle’ – Limitation Act applies

Legislation Cited:
Limitation Act 1969 (NSW), ss 50C, 50D, 62A, 62B, Div 6 Pt 2
Motor Accidents Compensation Act1999 (NSW), ss 3, 3A, 3B, 109, 134, Ch 4, 5, Sch 5 cl 9
Road Transport Act 2013 (NSW), s 3
Road Transport (General) Act 2005 (NSW)
Transport Administration Act 1988 (NSW), s 121

Cases Cited:
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53
Sheehan v SRA; Wicks v SRA [2009] NSWCA 261
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22

Category: Principal judgment
Parties: Mr Watson (Plaintiff)
State of NSW (Defendant)
Representation:
Counsel:
Mr P Mooney SC (Plaintiff)
Solicitors:
Steve Masselos & Co. Pty Limited (Plaintiff)
McCabe Curwood Pty Ltd (Defendant)

File Number(s): 2021/37198

Judgment

Mr Watson sought an order under s 62A of the Limitation Act 1969 (NSW) extending the 12 year long stop limitation period and in the alternative, leave to commence the proceedings under s 109 of the Motor Accidents Compensation Act1999 (NSW), together with leave to file a proposed statement of claim.
The orders sought were finally not opposed by the State, in circumstances where on Mr Watson’s case, on 31 January 2003, during the course of his employment by the New South Wales Fire Brigade as a firefighter, he had to attend a train derailment south of Waterfall railway station, in which a number of persons were killed and 42 others injured.
What Mr Wood seeks to claim includes that:

the derailment was caused by the negligence of the State Rail Authority;

it owed him a duty to take reasonable care not to cause him mental harm, knowing that rescuers such as he would attend the scene of such a derailment;

the SRA was in control both of the operation of the train and the procedures to be followed, in the event of a derailment;

it was reasonably foreseeable that:

a rescuer attending a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 765
Decision Date: 25 June 2021

CaseChat Overview and Summary

The case of Watson v State of NSW was heard in the Supreme Court of New South Wales. The plaintiff, Watson, sought damages for psychiatric injury sustained as a result of an incident involving a motor vehicle operated by an employee of the defendant, the State of NSW. The primary dispute centred on the timeliness of the plaintiff's action, as the plaintiff did not immediately manifest symptoms of the injury and therefore did not initiate proceedings within the statutory limitation period. The plaintiff applied for an extension of time to bring the action, contending that the delayed onset of symptoms should be considered in determining whether the action was brought within the requisite period.

The court was required to determine whether the application for an extension of time to bring the action should be granted. A secondary legal issue involved which statute's limitation provisions applied to the application: the Motor Accidents Compensation Act 1999 or the Limitation Act 1969. The court also had to interpret the definition of 'motor vehicle' under the Limitation Act to ascertain its applicability to the circumstances of the case.

The Supreme Court found that the plaintiff's application for an extension of time should be granted. The court reasoned that the delayed onset of the plaintiff's symptoms justified an extension of time to bring the action. In determining which limitation provisions applied, the court held that the Limitation Act 1969 was applicable rather than the Motor Accidents Compensation Act 1999, as the definition of 'motor vehicle' in the former did not encompass the circumstances of the incident. Consequently, the court concluded that the Limitation Act applied and granted the plaintiff's application for an extension of time.

In light of the above findings, the court ordered that the plaintiff's action be permitted despite the delay in bringing the proceedings. The court also directed that the Limitation Act 1969's limitation provisions apply to the application and that the plaintiff's action would proceed within the extended timeframe.

Orders